from the do-we-get-to-do-it-a-fourth-time? dept

Check out Judge Michael Davis. After the second Jammie Thomas-Rasset case had a jury return an award of $1.92 million for her sharing of 24 songs, the judge reduced the award from $80,000 per song to three times the statutory minimum of $2,250 per song. Of course, this resulted in a wild freakout by the RIAA... and a third trial. In the third trial (just on the award amount), the jury went with $62,500 per song shared, or $1.5 million total. Considering the massive freakout last time, you might think that Judge Davis would just be done with this, but instead, he's sticking to his guns, once again reducing the award to the same $2,250 per song. This really makes it the third time he's overturned the jury (though, the first time was because he felt he gave improper jury instructions).

Of course, the RIAA will once again freak out and this will be appealed. The judge's ruling, though, is well worth reading, calling the jury award of $1.5 million "appalling":

The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jurys award to the maximum amount permitted under our Constitution.

He notes that, given the past experiences with this dispute, he's "loath" to do this again, but "the Constitution and justice compel the Court to act."

Judge Davis is clearly aware that the RIAA would freak out about this, and lays out, in great detail, his arguments for why the original awards are unconstitutional (as a violation of due process) and why the maximum fine he believes is allowed under the Constitution would be the $2,250 per song he changed the award to.

The RIAA, of course, will continue to claim that the ridiculous million dollar plus awards for sharing 24-songs are perfectly appropriate. They'll claim, as they have in the past, that the fact that multiple juries came up with this amount shows that the public agrees such ridiculous fines are normal. As per usual with the RIAA, they're being misleading. The reason that juries reach such disproportionate awards is because of the way the choices are framed to the jury. There are all sorts of studies on how framing influences a jury, and how juries don't actually consider the proportional response of the offense to the punishment.

There's one other interesting bit in the ruling that won't get much attention. That is that the RIAA asked for an injunction barring Thomas-Rasset from infringing any further, and the court grants it... in part. It's the part that it doesn't grant, which is interesting. The RIAA asked for the court to say Thomas-Rasset should be barred from "making available" any copyrighted works via file sharing programs, but the court, correctly (despite the RIAA's long-term effort to pretend otherwise), points out that there is no "making available" right within copyright law. The Court is short and sweet on that point:

Plaintiffs further request that the Court include language in the injunction barring Defendant from making any of Plaintiffs sound recordings available for distribution to the public. Plaintiffs argue that, if Thomas-Rasset makes Plaintiffs copyrighted works available on a peer-to-peer network, she will have completed all of the steps necessary for her to engage in the same illegal distribution of Plaintiffs works for which she has already been found liable. Because the Court has held that the Copyright Act does not provide a making-available right, it will not enjoin Thomas-Rasset from making the copyrighted sound recordings available to the public.

While there's nothing really new here, it's nice to see that point reinforced once again. Making available, by itself, is not copyright infringement, despite the industry's attempts to portray it as such.

Reader Comments

They didn't want her to share copyrighted material with a file sharer program? So...she wouldn't even be allowed use a web browser (file share program) to look up google.com, where there will be a copyrighted/trademarked/patented/whatever Google logo downloaded to her computer?

Re: Re:

You're kidding, right? One reception is one share. They are semantically, procedurally and ethically identical.

Or maybe you're the Anonymous Legalistic Coward. Because there's probably some case law somewhere that says that merely receiving something isn't the same as participating in the sharing of something. In that case, Carry On, Oh Great Legum, but be aware that no non-lawyers live in that universe.

if 24 songs = 1.92 million
and if someone, not myself, but who looks and acts like me downloaded say over 2tb of music in the past 10 years or so. (making assumptions, it's been a long time)
and each song is on avrage 6mb and assuming i did math correctly thats ~16600 songs at $80,000 a song
this person, who likely is infringing on my publicity rights, cost the RIAA $1,328,000,000!

Re:

Curious here. What would have happened if someone on that jury with some intelligence, charisma and a bit of knowledge on these issues (and perhaps also aware of jury nullification, but shhhh....can't talk about that) had convinced the remainder of the jury to come back with a award of say $20 for each song? Would it be a mistrial or something like that? Would the award default to the lowest framed amount? What would happen?

Re:

The minimum is $2250 - the judge has overruled a jury now 3 times in setting the amount at three times that minimum, or $6750 per song, or $162,000.

I think the record labels see a problem here, the reward to them doesn't cover the extensive legal costs to get here. The judgement amount isn't enough to justify the legal action, which neuters the law. That would effectively be legislating from the bench.

Considering the judge has overruled a jury 3 times, I think it is safe to say that this would be an activist judge. Likely the judged ruling once again gets kicked out on appeal, and hopefully the judge gets replaced.

Re: Re: Re: Re:

No. They picked a stupid situation to try and make a case. Why not improve a business model instead of being dependent on judgements from lawsuits. Maybe they could have done a cost benefit analysis before lawyering up. How much would be reasonable to assume you could charge somone for 24 songs? If you thought anywhere near $1.5 million, I'm sorry, but you are a fucking idiot. $54k is still to high in my opinion, and if that would not cover your lawyers costs, don't pursue the case.

Re: Re: Re: Re: Re:

Re: Re: Re: Re: Re: Re:

How do you know that? Evidence, or your own baseless assumptions again?

I can make baseless assumptions too - even if it was more than 24 songs, it's unlikely that her actions cost anything like $54k of losses for the industry. This lawsuit has probably cost many times that already on negative publicity alone. I know I wasn't alone in boycotting major label product on the basis of cases like this.

Re: Re: Re: Re: Re: Re: Re:

Paul, it was hundreds and hundreds of songs. They picked 24 as "representative" and used them for the court case. The judge seems to be forgetting about that. I would say that the RIAA lawyers would be in good shape to just set up another lawsuit for hundreds more songs, and see how that one goes.

They tried like heck to let her off lightly, but she got horrible legal advice. She ruined her life by being a pirate.

Re: Re: Re: Re: Re: Re: Re: Re:

"Paul, it was hundreds and hundreds of songs. "

According to Wikipedia, the original claim was for 1,702. That's a claim, not a proven fact, coming from organisations that have hardly been perfect in their accuracy in these matters. Only 24 have been proven in a court of law, unless I missed something.

"They picked 24 as "representative" and used them for the court case."

So, why was the list reduced so drastically? Was it because they wanted to make the court's life easier, or was it because those were the only songs they could prove she had ever offered to share? It certainly wouldn't be the first time that claimed long lists of infringements was reduce dramatically because when called upon to prove it in a court of law, because they couldn't provide evidence for most of the content. Tell me again why "we all know" she did something that's never been proven except by your own assumptions?

Let's face it, half the controversy over this particular case is due to the disproportionate fines over a tiny number of songs. IIRC, distribution wasn't required to be proven, only "making available". That's the problem here. Convicted of actually distributing 1,702 songs that have been proven to have caused damage to the industry? OK. But, she's been convicted of sharing just 24, and the fines they're trying to claim are utterly outlandish. Thousands of dollars per track with no evidence that a single dollar was actually lost through her actions (how can she lose them money by simply offering to share, if I'm right about only "making available" having been proven)?

"The judge seems to be forgetting about that."

Unless I misunderstand your legal system, the judge has to base his decision on the evidence in front of him, not what evidence that hasn't been cherry picked might have proven. She has been found guilty of sharing 24 songs. The punishment handed down by the court should be for the sharing of 24 songs. Period.

"They tried like heck to let her off lightly, but she got horrible legal advice."

Maybe. IIRC, half the point of her defense was to set a precedent so that the half-assed extortion tactics from the RIAA might be changed or stopped. Remember, most people were just paying up without ever being tried in court, they were sending out thousands of claims and they managed to screw up many times. She refused to roll over and simply pay their protection fee. A little silly if she knew she was breaking the law, but there's value to it even so. Subsequent actions have been due to the ridiculous penalties being request, which she almost certainly can't pay in any event.

"She ruined her life by being a pirate."

She shared (or could have shared) the equivalent of up to 2 CDs worth of music (that's all that's been proven in a court of law). Because she did this online instead of copying tapes or CDs like people had been doing for decades previously, she was picked as a target, and the resulting court cases are essentially the RIAA trying to make an example of her because she refused to pay the protection money.

Should she have shared music online? Of course not. But, the punishment here is so disproportionate to whatever damage she might have done by her actions, it's astounding.

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"No, they had her for hundreds of songs, but chose 24 as "representative". The RIAA let her off EASY."

Demanding $1.5 million for a profitless and potentially victimless civil offence (if the files were only made available and not shared) is letting her off easy? Again, why 24 songs? Why not 10%, or 200?

I'd ask for an explanation as to why this action was taken, and why you think that evidence not submitted to the court should be taken into consideration for sentencing, but I don't think I'll get an intelligent one.

"This b**** LIED and said it wasn't her."

The only evidence that the RIAA have that it is her is an IP address. She may not have been lying, only unable to prove that the IP wasn't being used by her at the time of the offence. There's a difference between not mounting a convincing offence and lying.

"Committed perjury."

Mounting a defence and a "not guilty" plea is perjury now?

"She should have been charged with that too."

Go ahead and charge her. Then it's up to you to prove she had full knowledge at the time a not guilty plea was filed. You'd also have to change the legal system so that someone can be charged for submitting a not guilty plea if they know they're guilty. Again, IANAL or American, but I don't think that's how your legal system works.

"If slimeballs like her are allowed to show such disdain for the law and the justice system, society goes down the tubes fast."

The RIAA is looking a lot worse here than a woman who shared some songs. They certainly lost my business over their actions, not Thomas' actions. Once again, she's been found guilty of sharing 24 songs and should be fined accordingly. The amounts being demanded are ridiculous and totally disproportionate to the crime.

To put it in perspective, $1.5 million is the same as Alcatel were fined recently for illegally bribing global officials, and more than Chesapeake Energy were fined for contaminating drinking water with natural gas, forcing families to be evacuated in Pennsylvania. You and your cronies seem to think that sharing some music is a worse crime than these - I disagree. Please explain your logic here, I don't see it.

Re: Re: Re: Re: Re: Re:

The thing is, here... in America... we give out judicial rulings based on the *actual charges* filed. We don't file charges for x, and then later say "but she also did y."

Perhaps it's different where you live. So, if the RIAA chose to only bring up 24 songs, then she's only punished for those 24 songs. If she did a lot more than that, then they should have filed for more than that.

Re: Re: Re:

Yep. This is the exact reason why copyright holders want "pirates" to be charged criminally. It's not expensive for them, but it is expensive for the state.

"That is kind of silly. If I hire the most expensive law firm I can find at $9,000 a billable hour to sue someone, then my award has to be enough recoup legal fees. Where is that written?"

Not sure exactly what you're asking here. You could always... Not sue, but this is the RIAA pre-2008 when heavy statutory damages was going to change people's behaviors. This is the SAME industry that thought it best to spend $3 mil to get $390K back in settlements. Crime sure paid on the extortion that they brought to the courtroom...

Re: Re: Re: Re:

Not sure exactly what you're asking here. You could always... Not sue...

That comment was in response to an above AC who was basically trying to say that the award has to be greater than the legal fees, which I thought was silly. (The missing question mark didn't help).

My original question, which I don't think was answered, was what happens if a jury ignores the instructions and comes back with an award lower than the framed amount in a case like this. Is it a mistrial? Does the judge overrule? What?

Re:

Not possible, there's a minimum penalty listed, the $2,250 is 3 times the statutory minimum (That's $750 so you don't have to find a calculator). Even at the minimum it's still $18,000 for those 24 files, they can't charge less. They have to make her pay, they can't state a lower amount legally unless they return a NG verdict, which they can't anyway. Over a million though... The woman will probably kill herself because there's no conceivable way in her lifetime she can repay such an award, $54,000 is bad enough for someone on limited means, for me that'd be my gross income up till about 2015.

Add the fact Jammie is potentially liable for all court costs which is probably another 50K or so given possible RIAA lawyer costs. And the lass is still being told to bend over and don't mind the lack of petroleum jelly.

It's a ridiculous penalty to inflict on someone outside of a commercial piracy charge, if a CD is roughly 20 USD each with 20 songs, you're talking charging someone for the value of 750 times the value of the song... I can't think of any filesharer that could claim they've uploaded any song over 200 times.

Re: Re:

"there's no conceivable way in her lifetime she can repay such an award"

That's part of what's so stupid about this entire case. They're not going after a millionaire or someone who made a crapload of money from piracy. It's an ordinary person who might not even have been able to pay the $1/song in iTunes.

At this point, if the RIAA accepted the $2,250 per song, they could use it as a precedent and go after heavier infringers. That's almost guaranteed to be many times more than they'd actually lose from even the heaviest infringers. But, that have to be arrogant fools and try to make an "example" of her. This not only makes them look greedy and evil (i.e. it's not enough to get a reasonable fine, they have to ruin her life as well) but they're not getting any money.

Thomas will continue to fight this for as long as possible, because she literally has nothing to lose. The judge will most likely continue to side with her, because the punishment demanded is so disproportionate to the crime.

"It's a ridiculous penalty to inflict on someone outside of a commercial piracy charge"

This is one of the big problems with the law here. Most of the laws were set up back when the only way to copy was on a physical item. Any significant level of copying involved a significant investment in media and copying devices, which almost guaranteed a profit motive. So, punitive measures were high to make those profits as risky as possible.

The problem is that technology has reduced the cost of copying to nearly zero, and so the profit motive no longer exists for the vast number of infringers. It's now about sharing music, not ripping people off, and fighting this directly has a lot of unintended consequences.

"I can't think of any filesharer that could claim they've uploaded any song over 200 times."

I could in some cases, but that doesn't mean that even that level of sharing loses the money claimed (i.e. any supposed losses assumes that the song would have been bought had piracy not been available, which is often not the case).

Re: Re:

Question

I'm not too familiar with the U.S. legal system, but how can there be so many trials about one case? There's the first trial, then an appeal from what I understand, a second trial because the damages were too low...? Is the next trial going to be the RIAA doesn't like the colour of Jammie Thomas's shirt she's gonna wear to court?

Re: Question

The first trial ended in a mistrial when the judge decided that one of the instructions he gave to the jury was in error, and it was not apparent from the jury's decision if the one jury instruction had influenced the amount awarded by the jury.

A new trial was scheduled, at the conclusion of which the judge gave instructions (sans the one he earlier decided was given in error), and the jury returned a large verdict based upon the statutory damages provisions of US law. The jury could have awarded as little as $750 per worked infringed, but instead awarded significantly more, based in part upon its finding that the various infringements were willful. The judge believed the number was too high, took a look at a district court decision rendered in Boston, and gave the rights holders a choice. Either accept a reduced award under a legal doctrine known as remittitur, or proceed to yet another trial. By this time, however, the defendant had a new set of lawyers who rejected even the reduced amount (the same amount awarded in this most recent go round) because they were intent on trying to get the case ultimately before the US Supreme Court.

Hence, trial number 3 was held and once again the jury came in with a very high number for the same reasons as the jury in the second trial. Once again the judge has reduced the number, and it is a given that the case will finally move along to a circuit court of appeal where the primary issue will be the constitutionality of statutory damages.

The outcome on appeal is anything but certain. Historical precedent from the Supreme Court is on the side of the rights holders, but as with any legal issue appellate courts may try and find a reason why what the Supreme Court has said in the past should not apply here.

Obviously, this case has a long road ahead of it, and the outcome is uncertain.

When you get nonsensical laws past you shouldn't be surprised when violating them returns nonsensical results.

Pre-No Electronic Theft Act (1997) she wouldn't have been charged with anything. Infringing copyright for personal use wasn't a crime. You could legally copy your albums, make mix tapes and trade those with your friends. As long as you didn't do it for financial gain it was legal. The only difference from where I sit is that pre-internet, it was cumbersome to make copies and/or swap them with others. Post internet it's almost impossible not to make copies and share.

When those in charge found out that they couldn't actually prosecute people for swapping/exchanging/sharing copyrighted materials for personal use they did what every red blooded American company does. They bought themselves some favorable legislation. Complete with over the top alleged damage amounts. Overnight, what pre-internet people took for granted became illegal. The excessive statutory damage amounts, that were only meant to apply to commercial infringers (remember pre-NET Act personal non-commercial wasn't illegal) now applied to teen-aged Texas cheerleaders, and mothers on welfare.

First stop, repeal the No Electronic Theft Act of 1997. Then dismantle the rest of these 'Intellectual Property' laws that criminalize large swaths of the citizenry and contribute to the trampling of our constitutional rights, not to mention the loss of jobs, innovation, it's costing the U.S. economy.

"The case of United States v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994), has drawn attention to current laws shortcomings. David LaMacchia, a student at the Massachusetts Institute of Technology described by the court as a computer hacker, id. at 536, created and operated electronic bulletin boards on the Internet and encouraged users to upload and download copies of popular copyrighted commercial software. The illegal copying that took place on the bulletin boards resulted in alleged losses to the copyright owners of over one million dollars. Because LaMacchia lacked a commercial motive, however, the government charged him with wire fraud rather than criminal copyright infringement. Id. at 541-42. The court dismissed the indictment, holding that copyright infringement can only be prosecuted under the Copyright Act. Id. at 545 (relying on Dowling v. United States, 473 U.S. 207 (1985))."

infringement is not theft

"The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling." I would just like to point out that the judge did make one mistake in his write up. The plaintiff didn't steal anything, he infringed on copyrights.

Re: Higher Award

Where do they find these incredibly cruel juries? The jurors must know that Jammie Thomas is not wealthy. She is just like all of them. She has no hope of ever paying $1.5 million or anything like it. The record labels have suffered no proven financial injury whatsoever. Why do the juries want to fine her at all? At worst, what she has done should be regarded as a trivial misdemeanor. She has suffered enough. Why can't the jury just find her not guilty?

So, how much did this "jury" get paid to vote on a middle class person owing more money than she will probably ever see in her life time short of winning a lottery? I understand that common sense isn't common, but 12, count them, TWELVE people agreed to this absurd amount. I'm calling bullsh$t on this. I think they were paid off or bribed in some fashion.

Does this even scratch smug assertions that you'll get away with "piracy"?

I'll disclaim yet again: I'm not for the media cartels.

But in the face of facts and force to the contrary, you people must start grasping that you're up against ruthless corporations, not engaging in fantasies that you'll be able to dodge the tyranny. It's here. Real life is abou to catch up to you, soon as the ISPs get their 5 (or 6) strikes programs going.

Re: Does this even scratch smug assertions that you'll get away with "piracy"?

You need to make more than a casual disclaimer. Your disclaimer is kind of like the phrase, "With all due respect.." prefacing something that expresses disrespect. That is, it does nothing. Since on the internet, mostly all we've got is words, your words give lie to your disclaimer, and point out your biases and prejudices.

At the point of 5 (or 6) strike programs, you'll see reality. I'd wager on huge backlashes when people get their "high speed internet" pulled for mere accusations of infringement, and you have to pay $35 to "dispute" an accusation. The banks who re-ordered incoming checks so as to make the maximum in overdraft fees found out about that sort of thing just a few years ago.

Re: Does this even scratch smug assertions that you'll get away with "piracy"?

you people must start grasping that you're up against ruthless corporations

Which in turn should start grasping that the majority of people does not perceive filesharing as morally wrong and certainly not as damaging since the industry fails every time presenting facts for their numbers.

Re: Re: Does this even scratch smug assertions that you'll get away with "piracy"?

Re: Re: Re: Does this even scratch smug assertions that you'll get away with "piracy"?

Hmmm...I believe you are deluded.

Not anyone I know think it is morally wrong they all do it.
And I believe you do it too, or you didn't ever send a song to someone, ever ripped a CD or a movie to make a backup so the kids don't scratch the original? Did you never lend anything or borough anything from anyone? somehow I find that hard to believe, so technically you are a pirate just like everyone else.

I would also like to know what do you think about all those little girls that pull off their cellphone cameras and starting recording the Bieber movie.

Explain why most new girls keep taking pictures with cellphones of books, magazines, recipes, packages or anything else so they can show it to their friends.

Re: Re: Re: Re: Does this even scratch smug assertions that you'll get away with "piracy"?

Incidentally this reminds me of having watched The Karate Kid, where Jaden Smith's character gives his crush a burned CD of classical music. I couldn't help but smirk inwardly. Given how the MPAA and RIAA like to complain about the possibility of promoting "infringment" and "making available" I'm surprised that scene was allowed.

Extending from that experience I recall something my lecturer told us in school, for a module in film as a part of my university course. We had to make a short film for that module, and during the lecture on sound editing he warned us against using licensed music - this, he stated, extended into classical music, because you'd still have to get the permission from whoever the performer was, even though said music is centuries old and clearly under public domain based on the life + 70 years rule. He also remarked on how most companies in this business make most of their revenue by litigation, so we'd have to tread extremely carefully.

As much as we don't really like him, I grant that he's got ten years experience in the field, and has the credibility to comment on the issue. In which case, it pretty much corroborates with what sites like TechDirt have been pointing out. The content industry doesn't thrive on producing content; it thrives on less scrupulous means.

Less money is more of a deterrent

I think if they want to deter people from illegal downloading the fines should actually be lower. If the verdict was around $10,000 - $20,000, that's real money. Most people would look for a way to pay it off, via a loan, monthly payments, home refi or whatever.

When someone that makes an average income is hit with a verdict of $1.5 million it has no meaning. It's like monopoly money.

Re: Re: Less money is more of a deterrent

Or just say Fuck it, I will do the time. Chances are you will spin through the revolving door with good behavior and overcrowding before the plaintiff pays off the legal fees. Plus you get free meals, a shower, a bed, work out time and equipment, medical care and color TV. Just put it on the U.S. credit card.

Re: Re: Re: Re: Less money is more of a deterrent

Re: Less money is more of a deterrent

It can't be a fixed value, it doesn't address people who can afford it and it is taxing on those who can't afford it.

It has to be a percentage of the persons yearly income, so it will have the same effect if you are rich or poor with a minimum to those people who have zero income.

If the purpose is to offer a deterrent that deterrent most have the same effect on every social bracket not just one part of it and that is not possible with fixed values it needs to be a percentage of the income.

$1.5 million for Jamie is ridiculous and she never will pay, that same value for Donal Trump is pocket change he would do it again and again and again, so the law actually doesn't do what it should do.

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The only difference between these two things is proof. If the order is not to "make available" then it is easier to verify that she has broken that order. If they can download it from her, it is available.

In order to prove reproduction or redistribution, one must find a party that downloaded it illegally and prove they got it from her.

That's not as easy as it sounds because any downloaded copy made on the record labels behalf (made by their agents for verification purposes) is authorized and therefore not infringing.

You Americams are Hillarious!

Keep throwing money at your legal system to protect someones "rights", and only the lawyers will have any money. Why don't you all buy your blank CD media from Canadian outlets. You will pay a "copyright fee" up front for each blank disc (about $10 for 50 discs). This fee goes to the gov't in lieu of any copyrighted material you burn to the discs. Since you have paid a copyright fee, you cannot be prosecuted. The Canadian Supreme Court has already ruled that it is the gov't that is responsible for paying the copyright fees to the labels to offset the losses for shared media. Since copyright legislation is part of NAFTA (North American Free Trade Agreement), any media you burn onto discs purchased through Canadian retailers are/is exempt from prosecution in both countries. Thus, we do not have any prosecutions in Canada, and the Supreme Court has blocked IPs from divulging user info to CRIAA in order to protect users from harassment.

Also, the Supreme Court of Canada has stated that offering songs on P2P is not illegal. Just like leaving music CDs or Blue-Ray Movies on my doorstep is not illegal. Pirates are not "stealing" anything. (The definition of theft requires you to take something and therefore deny use of the something to another party.) They are just violating license of copyright. Canadian copyright law presently allows blank media users to pay for all copyright access up front. According to the law, no violation has occurred. If the record companies do not like it, they can take their business elsewhere. IN CANADA, FILE SHARING ON P2P IS NOT AGAINST THE LAW. (provided you burn to blank cd media as your first copy and use all copies for "personal" use)

Re: Rediculous

Actually, I don't care. She will never have to pay it. She is a role model for every person who gets accused of piracy. Just keep it in court if the settlement is unreasonable. Let them go bankrupt from legal fees.